Protecting America’s Workers Act of 2009: A Plan to Give OSHA A Lot More Teeth

From: McDermott Newsletters

"Just weeks before his death, the late Senator Ted Kennedy (D-MA), with the help of Senate Majority Leader Harry Reid (D-NV), introduced legislation to amend the Occupational Safety and Health Act of 1970 (OSH Act), which has not been significantly altered since its inception. The proposed legislation, S. 1580, is known as the Protecting America’s Workers Act of 2009 (PAWA). A companion bill, H.R. 2067, has been introduced in the House of Representatives by Representative Lynn Woolsey (D-CA).

...Previous versions of PAWA, introduced in 2004, 2007 and 2008, gained increasing support, including co-sponsorship by then-Senators Barack Obama and Joe Biden. What makes this legislation different is that it actually may make it out of committee and, with the blessing of the current administration, be passed by Congress in some form.

PAWA would make a number of major changes to enforcement of the OSH Act. This On the Subject, however, focuses on the very significant changes to criminal and civil penalties under the OSH Act proposed in this legislation.

More “Meaningful” OSHA Penalties

Penalty amounts under the current OSH Act regime have been criticized as too small to effectively promote worker safety. Congressman George Miller (D-CA), chairman of the House Committee on Education and Labor, recently wrote on the Hill’s Congress blog: “Penalties are the key enforcement mechanism under the OSH Act. They must be real. They must be meaningful. They must function to deter violations. They must get people’s attention. And, these enforcement mechanisms must not be a mere cost of doing business.” PAWA increases the size and application of penalties in several important ways. The penalty increases contained in this bill, in conjunction with OSHA’s new “per employee” penalty rule issued in December 2008 (the final rule subjects employers to “per employee” penalties for violating a large number of existing standards and permits OSHA to propose a separate penalty with respect to each employee not trained or not equipped with personal protective equipment) would dramatically increase the penalty amounts that may be assessed against employers. Under the OSH Act, OSHA has the authority only to propose penalties. Penalties are assessed by the Occupational Safety and Health Review Commission, an independent agency that is not part of OSHA. See 29 U.S.C. § 666(j).

Criminal Penalties

PAWA would greatly expand the availability of criminal penalties against employers. The bill proposes to change the criminal charge for willful violations that result in an employee death from a misdemeanor to a felony. This change would make the prosecution of such charges much more attractive to local U.S. attorneys and give them an incentive, at OSHA’s urging, to bring more criminal charges. Furthermore, for the purposes of felony OSHA prosecutions only, the legislation expands the definition of “employer” to include “any responsible corporate officer.”

The maximum prison sentence for a willful violation that results in the death of an employee would increase under the bill from six months to 10 years for the first offense and from one year to 20 years for repeat convictions. The maximum prison term for knowingly making a false statement, representation or certification to OSHA also would be increased by the legislation from six months to two years.

PAWA would also expand potential criminal liability for willful violations to include circumstances that do not involve the death of an employee. Under PAWA, employers or responsible corporate officers who commit a willful violation that results in the serious bodily injury of an employee would be subject to a felony criminal prosecution, with imprisonment up to five years for a first offense and up to 10 years for subsequent convictions.

Civil Penalties

Civil penalties for willful and repeated violations would be increased under PAWA from a current maximum of $70,000 to a new maximum of $120,000 per violation. The bill would also increase the minimum penalty for a willful violation from $5,000 to $8,000 per violation. If a willful or repeated violation results in the death of an employee, PAWA would increase the penalties even higher, to a minimum of $50,000 and a maximum of $250,000 per violation. In conjunction with OSHA’s new “per employee” penalty rule, these increases could result in enormous proposed penalties.

Under the bill, the maximum civil penalty for serious and other-than-serious violations, and the maximum daily penalty for a failure to abate, would increase from $7,000 to $12,000 per violation. Should an employee death result from such a violation, the minimum penalty under the legislation would be $20,000 and the maximum would be $50,000 per violation.

Finally, regarding penalty amounts generally, PAWA would require OSHA to adjust these civil penalty minimums and maximums at least once every four years to account for increases or decreases in the Consumer Price Index..."

read more here.

The following article was written by Margaret Spence, a Worker's Compensation expert, founder of National Return to Work Week, and author. The article talks about the recent discrimination court case of EEOC vs. Sears, Robuck & Co.

Margaret says much of what I've been saying in various places for awhile. She just says it better. It's a long read, but well worth the effort, and something safety professionals need to be aware of.

The article can be found at: http://margaretspence.com/6-2-million-reasons-to-implement-a-proactive-workers-compensation-return-to-work-program/

The court case can be found at: http://www.eeoc.gov/press/9-29-09.html

6.2 Million Reasons to Implement a Proactive Workers Compensation Return to Work Program

Employers are so focused on managing workers compensation injuries that they often forget that the injury itself is the gateway to employment litigation. Until now, employers have systematically overlooked and downplayed the link between the Americans with Disabilities Act (ADA) and workers compensation. As employers were asleep at the switch, the US Equal Employment Opportunity Commission (EEOC) was working diligently to remind us that the ADA is the 6.2 million dollar elephant in the workers compensation room.

On September 29, 2009, The U.S. Equal Employment Opportunity Commission (EEOC) announced a record-setting consent decree resolving a class lawsuit against Sears, Roebuck and Co. (Sears) under the Americans with Disabilities Act (ADA) for $6.2 million. The consent decree, approved by Federal District Judge Wayne Andersen, represents the largest ADA settlement in a single lawsuit in EEOC history. The EEOC’s suit alleged that Sears maintained an inflexible workers’ compensation leave exhaustion policy and terminated employees instead of providing them with reasonable accommodations for their disabilities, in violation of the ADA.

This case not only highlights the link between workers compensation and the ADA but it magnifies the fact that twenty years after the ADA was enacted employers are still struggling to understand the process. Even large employers have a hard time balancing and defining the ADA exposure as they manage the work related disability. The EEOC Chicago District Director John Rowe, who supervised the agency’s administrative investigation preceding the lawsuit, said that the case arose from a charge of discrimination filed with the EEOC by a former Sears service technician, John Bava. According to Rowe, Bava was injured on the job, took workers’ compensation leave, and, although remaining disabled by the injuries, repeatedly attempted to return to work. Sears, Rowe said, “Could never see its way clear to provide Bava with a reasonable accommodation which would have put him back to work and, instead, fired him when his leave expired.”

The underlying issue that this case raises is the importance of having a proactive return to work program that not only satisfies the workers compensation exposure but addresses the looming ADA accommodation requirements. It’s quite simple when employees are injured on the job employers must have a predefined plan, in place, that addresses return to work options as well as ADA accommodations. We can no longer discard injured employees from the workforce, we have to make a valiant effort to get injured employees back to work and keep them there successfully.

If it’s so simple, why do employers struggle to create proactive return to work opportunities? And why do they fail to understand how the ADA exposure is created?

Let’s walk though a typical case that illustrates how intertwined and complicated the ADA exposure is, especially when you are balancing State workers compensation and Federal Leave guidelines.

Ouch, I’m Injured – The ADA Exposure Begins – Now!

David is a warehouse clerk, with a large multi-state employer; his job requires lifting up to 75 pounds. David lifts a box and injures his back – a workers compensation claim is filed and David is referred to an orthopedic surgeon, who eventually recommends surgery. David has back surgery and is left with significant lifting restrictions that not only affects his major life activities, but may prevent him from doing his pre-injury job without some accommodation. Several weeks after surgery and rehabilitation David’s orthopedic surgeon releases him to return to work light duty with restrictions of no lifting over 15 pounds.

David contacts his employer to return to work and he is told that they can not accommodate his light duty restrictions. His employer request that he stay at home, continue to collect workers compensation and contact them when he is feeling better – a typical conversation that occurs when employers do not have effective return to work policies or procedures – strike one in the ADA compliance process.

David continues to contact his employer because he wants to return to work, he is told repeatedly that there is no job available to accommodate his restrictions – strike two in the ADA compliance process.

Eventually, David is released to return to work full duty with permanent restrictions of no lifting over 20 pounds. David contacts his employer to return to work and he is told that they do not have a job available within his permanent restriction. David advises his employer that he can do his regular job if, he can use a Forklift to lift any items over his lifting restriction. The employer says no – they are afraid David will have another injury because his pre-injury job requires lifting up to 75 pounds – strike three in the ADA process – the employer is now out of compliance.

To further complicate matters, while the workers compensation process was under way, David’s employer puts him on Family Medical Leave (FMLA) which provides David with 12 weeks of job protection. The company’s leave policy mandates termination at the end of the 12 weeks of FMLA protection. Based on their leave policy, David is slated for termination because his FMLA protection has expired. The employer promptly contacts their insurance carrier attempting to settle David’s workers compensation claim – there’s no need to discuss return to work because David will be offered a monetary settlement –at this point the EEOC is knocking on the employers’ door.

In this example, the employer does not evaluate reasonable accommodations that could help David return to work light duty, they did not have the interactive conversation with David to evaluate the type of the accommodations he is requesting, which is required under the ADA. David, a long term employee, feels that there are other ways to accommodate his restrictions but his employer is not willing to work with him so he hires an attorney and the ADA Elephant is now in the room.

Most employers do not understand the difference between workers compensation disability and qualifying for ADA protection. The key difference between workers compensation and ADA is: workers compensation was designed to provide injured employees with medical and financial assistance following a work related accident. The ADA was enacted by Congress to protect individuals from discrimination associated with their disability and to provide reasonable work accommodation, if the employee qualifies for this protection. The exposure is created when employers do not have proactive return to work policies, when they deny reasonable accommodation and when they are more interested in terminating injured employees who have work related disabilities than brining them back to work.

David’s employer incorrectly assumes that because he did not qualify for permanent disability under workers compensation he does not qualify for Americans with Disabilities Act protection or accommodation. The confusion, under the workers compensation system, David has a permanent impairment, he is not considered permanently disabled – this technicality does not mean that he does not meet the definition of disabled under the ADA. In the eyes of David’s employer, his work status is a workers compensation issue. Wrong – this is where the wheels come off the ADA accommodation car and the employer is sailing toward a costly reality check.

In our example, the ADA exposure started when David’s employer was notified that he had restrictions that would limit his ability to perform his regular job. The key reminder for employers, the ADA exposure can start with the injury itself because the injury can meet the definition of disabled under the ADA – example: an amputated arm.

Another key point, the workers compensation system, mandates that treating physicians address the employees ability to return to work and we further ask the doctor to address the employee ability to do their regular job, we then ask the physician to address permanent restriction and we get these notices routinely – yet we don’t have a plan to evaluate accommodations that will result in injured employee retention and successful reintegration into the workforce. I am constantly amazed by the disconnect that occurs when employers are clueless about the information sitting in their files.

In essence, workers compensation is the gateway to ADA accommodation. Employers incorrectly assume that the workers compensation system will protect them from ADA litigation – surprise, surprise, it will not! In fact, the workers compensation system does little to explain the exposure and they will not provide employers with a defense for inadequate ADA policies – the two systems are independent and co-dependent on each other.

During fiscal year 2008, disability discrimination charges rose to 19,453 – an increase of 10 percent from the prior fiscal year and the highest number of disability charges filed with the EEOC in 14 years. One factor that may be contributing to this rise, the economy. As the economy forced employers to make adverse employment decisions, many did not equate terminating injured employees with ADA litigation.

We know the wrong way – so what is the right way to handle the ADA Exposure?

The solution is simple injured employees can return to work if employers make a valiant effort to bring them back to work. Your injury management program should be cohesively blended into your regular employment practices. When evaluating job accommodations, employers must focus on ability, not disability – what can the employee do and how can we keep them working?

Remember, the workers compensation system is built to provide notification of injured employees medical and work status after each doctor’s visit. These notifications address the employee’s ability to return to work with or without restrictions. If the employee has restrictions, the restriction may eventually affect the employee ability to perform the essential functions of their pre-injury job – creating the ADA exposure. You have to have a plan before this happens. You must evaluate each injury independently and determine if the injured employees qualification for ADA protections. Then you must review the pre-injury job description, evaluate the essential functions or duties required to do the job and you must complete the interactive process with the injured worker to determine how you can accommodate them in the workforce. Is there request for accommodation reasonable and can we provide it? Without these key ingredients more employers will find themselves on the EEOC radar.

If you are still struggling with this process – there is fantastic information available at the Job Accommodation Network’s website – http://www.jan.wvu.edu/

It’s unfortunate for Sears that they had to be the one to turn the return to work light bulb on for other employers. Employers now have 6.2 million reasons to evaluate their workers compensation return to work polices and simultaneously evaluate how they comply with the Americans with Disabilities Act.

EEOC -- H1N1 Flu Virus Workplace Rules Now Available for Employers

From: http://newsok.com/qa-with-tony-puckett/article/3400040

Q&A with Tony Puckett -- Q: Has the Equal Employment Opportunity Commission issued guidelines for employers to address the H1N1 flu virus and remain in compliance with the Americans with Disabilities Act (ADA)?

read more here.

CSB Releases New Safety Video, “Combustible Dust: An Insidious Hazard”

From: http://www.csb.gov/newsroom/detail.aspx?nid=269

Washington, DC, July 28, 2009 – The U.S. Chemical Safety Board (CSB) today released a new safety video depicting how accumulations of combustible dust at worksites can provide the fuel for devastating explosions that kill and maim workers, shut down plants, and harm local economies.

Entitled, “Combustible Dust: An Insidious Hazard,” the new video is available online at www.CSB.gov, and on YouTube. It can also be ordered free of charge on a new two-DVD set of all CSB safety videos by filling out the CSB’s online DVD request form.

“Combustible Dust” features all-new CSB computer animations which illustrate three major dust explosion accidents the CSB has investigated: West Pharmaceutical Services in Kinston, North Carolina; CTA Acoustics in Corbin, Kentucky; and Hayes Lemmerz International, in Huntington, Indiana.

For each accident, the animations show how explosive dust accumulated over years on plant equipment, pipes, floors, ducts, dust collectors, and other areas. The video shows how conditions develop needing only an ignition source to set off a primary explosion, which lofts the accumulated dust, leading to deadlier secondary explosions. Read more here.

Obama taps epidemiologist to lead OSHA

From: http://blogs.hcpro.com/osha/2009/07/obama-taps-epidemiologist-to-lead-osha/

President Obama wants David Michaels, Ph.D., MPH to serve as the next head of OSHA, according to the Associated Press.

Michaels is currently the research professor and interim chair of the Department of Environmental and Occupational Health at The George Washington University School of Public Health and Health Services. Read more here.

More Companies Should Be Preparing for an Influenza Pandemic

From: http://online.wsj.com

Few companies have made preparing for a potential influenza pandemic a top priority. Perhaps more of them should.

The World Economic Forum earlier this year put the adverse economic impact of an influenza pandemic at around $500 billion. That was before the recent outbreak of swine flu sickened more than 28,000 people world-wide, leading the World Health Organization on June 11 to declare its first pandemic in 41 years. While WHO officials emphasized that most of the people infected so far have experienced mild symptoms and recovered quickly, they say the outbreak could become more serious.

Much of the cost associated with a pandemic involving a more virulent strain of flu would stem from employee absenteeism. It is estimated that 15% to 30% of employees would stay home during such a pandemic due to illness, family-care responsibilities and fear of being infected at work. The result would be to cripple operations and disrupt global supply chains. As in the credit crisis, the fallout likely would spread rapidly because of how connected the world’s economies are.

The good news is that employee absenteeism—and its financial toll on employers—may be controlled to a large extent with adequate planning and stockpiling of antiviral medication, masks and gowns.

The bad news is that few companies have taken steps to protect themselves. A 2007 survey reported at a Harvard Business School conference on pandemic planning found that while 88% of companies seemed prepared to deal with a power disruption and 70% with a technological failure, only 13% were prepared for the kind of labor-force disruption that would come with a pandemic....

Being unprepared carries potential risks, even legal ones....read more here.

Talk of pandemic preparedness within the safety community has slowed to a trickle. While the current H1N1 Pandemic is a mild one, this is the perfect time to get plans in place. The H1N1 has already begun to mutate (see http://www.medicalnewstoday.com). There are many companies still without a pandemic preparedness plan. I previously blogged about how to write one here, including some excellent resources: Swine Flu and Pandemic Preparedness in the Workplace - Part II. Now is the time to make sure we all have that Pandemic Preparedness Plan in place.

Safety Rap

I'm not much for Rap, but this has to be one of the coolest videos. This video was produced by Virginia Dominion Power. Talk about employee engagement! Please watch this video and think about how effective producing your company's safety video could be if you got your employees involved.